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In the world of wind - setback shmetback - no harm, no foul

Hanna v. Ontario (Attorney General) was at the centre of some controversy amongst those in the Ontario environmental and renewable energy bar. What seemed to start out as an attempt by a local resident to potentially quell wind power development in his community turned into a full blown assault by Hanna’s legal team on how the Ministry of Environment came up with a policy for setbacks on wind turbine development. Procedurally, the case began as a judicial review challenging various sections of the renewable energy approvals regulation, which sets out the minimum setback requirements for wind energy developments. The regulation, as with most regulations relating to environmental or potential environmental issues, was the subject of public consultation prior to enactment.

The heart of the challenge was that the government failed to abide by its own requirements to “take every reasonable step to ensure the Ministry of Environment’s Statement of Environmental Values (“SEV”) is considered whenever decisions that might significantly affect the environment are made by the Ministry.” Hanna claimed that the Ministry’s SEV required it to use a precautionary approach in decision-making that was protective of human health and the environment. He claimed that the Ministry had no medical studies in support of the recommended 550 m setback requirements for industrial wind facilities (generating power in excess of 50 kW), and that as a result, it did not have sufficient information to make a decision that was protective of human health.

In support of his argument, Hanna called various medical witnesses testifying about the lack of medical support for a 550 m setback. He was critical of the absence of anyone qualified as a medical expert at the Ministry having reviewed studies available about the setback policy. But perhaps Hanna lost sight of the significance (at least in the Divisional Court’s view) of the public consultation process preceding the passing of the regulation; a process which the court noted Hanna did not participate in. The court found that 8% of the comments received through this process were directed at health issues relating to wind turbines. The court also found that there was some technical basis for the 550 m setback.

Ultimately, the Divisional Court rejected the application, holding that the legislative requirements simply require a minister to “consider” SEVs in decision-making. The legislative initiative itself, being the reduction of greenhouse gas emissions for the purpose of protecting the environment, seemed to qualify as consideration of many of the Ministry of Environment’s components of its SEV. The Divisional Court also noted that a legislative challenge was not the only remedy available: since approvals are required under the regulation, a person could challenge the particular approval itself (a separate hearing before the Environmental Review Tribunal). If the tribunal had concerns about the setback in a particular case, it could revoke the permit or require an increase in the setback. The Court held that in this case, it was not their call as to whether the approval was proper - redress could have been sought to the Environmental Review Tribunal.

So what’s the next chapter of the story?

Hanna sought leave to appeal to the Court of Appeal but was denied.

The Environmental Review Tribunal (“ERT”) released a decision on whether an approval should have been granted in Erickson v. Director, Ministry of the Environment. Erickson involved an appeal of the Director’s decision to issue a Renewable Energy Approval (“REA”) to Suncor Energy Services Inc. to establish a 20 MW wind facility in Chatham-Kent (known as the Kent-Breeze Project). The Project was one of the first approved under the Green Energy Act, 2009. The appeal was sought by Chatham-Kent Wind Action Inc. and Katie Brenda Erickson on the ground that the Project would “cause serious harm to human health”, a statutory test set out in s. 142.1 of the Environmental Protection Act. During the course of the hearing, the ERT heard evidence from more than two dozen expert witnesses on the subject of potential harm or unknown harms from wind turbines. The ERT reasoned as follows:

Not enough evidence to support claim for serious harm to human health

The parties in the Erickson case agreed that the Project would not cause direct impacts to human health, such as hearing loss. The focus of much of the appellants’ case was on indirect impacts. The ERT found that the statutory test for serious harm includes both direct and indirect impacts and that the onus of proof was on the appellants.

The issue was whether indirect impacts would be caused at a level that met the “serious harm to human health” threshold, as the appellants argued. The Tribunal noted as follows: “What needs to be shown here, given the wording of the legal test, is that the effect is being caused by the Project, even if the exact mechanism is unclear.” On whether the appellants met the legal test, the Tribunal noted:

[The appellants] provided evidence that the Tribunal finds to be exploratory in nature, even if given significant weight… It is, therefore, no surprise that the legal test, which requires proof of harm, has not been satisfied when the applicable scientific evidence is in such an early stage of development.

Nevertheless, the ERT was careful to note that “the science in this area is evolving and it is hoped that future studies will shed additional light as to possible impacts on human health.”

In addition to noise, the ERT concluded that there was insufficient evidence for a finding that serious harm to human health would occur due to tower collapse, blade failure/throw, ice fall/throw and shadow flicker.

Prediction, Measurement or Assessment of Sound from the Facility

The appellants called evidence about challenges and uncertainties associated with predicting, measuring and assessing sound. The ERT concluded that the appellants failed to show how these uncertainties would cause serious harm to human health. The appellants were able only to demonstrate that predictions, measurements and assessments will not be completely accurate.

Compliance with the MOE’s Statement of Environmental Values (“SEV”)

The Ministry of Environment’s SEV can play an important role in informed environmental decision-making. The appellants argued that the approval granted in this case did not comply with the MOE’s SEV, in particular the precautionary wording. The Director testified about the role of precaution in his decision-making process. The ERT found that “based on [the Director’s] testimony, the tribunal has some concerns about the Director’s understanding of the role and applicability of the [precautionary] principle… The impression left by some of the Director’s comments is that more work should be done within the MOE on putting the precautionary principle into practice.” Ultimately, however, the ERT found:

… the appellants have not proven that serious harm will be caused with reference to the approval’s alleged non-compliance with the SEV. Rather, they have simply raised valid concerns about the process by which the application was assessed in light of the SEV. This is not enough to satisfy the section 145.2.1 test and provide jurisdiction to the Tribunal to make changes to the approval decision.

The ERT considered the appellant’s arguments and experts on the issue of whether wind turbines cause serious harm to human health. They concluded that “the evidence shows that there are some risks and uncertainties associated with wind turbines that merit further research”, just not enough to satisfy the steep burden on the appellant in terms of overruling the approval granted to Suncor.

Industry experts believe that this burden will never be met given (a) the number of studies already conducted in the UK and Europe showing no serious health effects and (b) turbine setback requirements in other jurisdictions are, in many cases, significantly closer to receptors than the current Ontario setback distance.